FOIA Update: Significant New Decisions

January 1, 1998

FOIA Update Vol. XIX, No. 4

Significant New Decisions

General Electric Co. v. EPA, 18 F. Supp. 2d 138 (D. Mass. 1998).

In a decision involving copies of records "sent from a federal agency to a state agency in the course of a coordinated regulatory effort," United States District Court Judge William G. Young held that such records are eligible for deliberative process privilege protection under Exemption 5. The requester, which sought documents that were generated by EPA and were forwarded to the States of Massachusetts and Connecticut relating to PCB contamination in western Massachusetts, argued that the deliberative process privilege "does not apply to information that has been shared with state administrative agencies." Observing first that "there is no broadly applicable state-federal 'co-regulatory' privilege," Judge Young then went on to declare that "[t]he boundaries of the federal executive deliberative process privilege in this co-regulatory situation extend only so far as is necessary to protect actual federal deliberative processes." He then concluded that records reflecting "agency requests for data, if revelatory of federal deliberative processes, do not lose their privileged status when transmitted to state 'consultants.'"

In a decision involving the investigation of the suicide of White House Deputy Counsel Vincent Foster, United States District Court Judge Thomas F. Hogan ruled that Exemption 7(C) protects autopsy and death scene photographs. The requester charged that the courts had created "'a family grief' exemption to the FOIA, [thereby] committing an abuse of judicial power," but Judge Hogan, after extensively surveying the case law, found not only that "the family of Mr. Foster has a legitimate and substantial privacy interest in the photographs," but that "[t]here is no doubt that the family would suffer additional grief from the release of the photos, and likely further harassment." The requester then argued that disclosure would serve the public interest by "monitoring the government's administration of justice," clarifying "alleged inconsistencies concerning Mr. Foster's fatal wounds," setting to rest whether "Park Police observed the entire autopsy," and clearing up "the possible missing status of other body photos," but Judge Hogan ruled that "the only possible resolution that [disclosure] could effect is to reveal the true nature of the fatal wounds" and even that would not outweigh the family's privacy interest.

In a surprising Exemption 1 loss, the Court of Appeals for the Ninth Circuit, in a 2-1 decision, overruled a district court order upholding the Department of State's classification of a letter from the British Foreign Office. The requester, an attorney for two former members of the Rajneeshpuran commune who were residing in Great Britain at the time they were charged with conspiracy to murder the United States Attorney for the District of Oregon, sought the letter in connection with their extradition. An Assistant Secretary of State attested that "it is longstanding custom and accepted practice in international relations to extend 'diplomatic confidentiality' to information exchanged between governments" and that in this case the British Government not only stated that it expected the information to "remain confidential," but it had previously denied a request made directly to it. He went on to swear that disclosure would "damage relations between the U.S. and Britain, and between the U.S. and other governments" because they "could well conclude that the U.S. cannot be trusted to protect confidential information." Nevertheless, the panel ruled that "the government never met its burden of identifying [and] describing any damage to national security that will result from release of the letter" and flatly refused to give any deference to the agency's judgment, stating that "[c]lassification decisions are not given deference . . . until the government makes an initial showing which would justify deference by the district court." Circuit Court Judge Barry G. Silverman dissented, stating that "in matters of national defense and foreign policy, the court should be very leery of substituting its own geopolitical judgment for that of career diplomats whose assessments have not been refuted in any way." Supreme Court review is in prospect.

Council for a Livable World v. United States Dep't of State, No. 96-1807 (D.D.C. Nov. 23, 1998).

In another Exemption 1 loss, United States District Court Judge Henry H. Kennedy, Jr. ruled that the State Department failed to follow Executive Order 12,958's procedures governing classification officials. The requester, an organization interested in arms control and disarmament issues, sought records about the agency's "post-licensing verification" of the sales to foreign countries of particular arms though the export license program. After an initial ruling that certain of the requested records were not protected under Exemption 3 by the Arms Export Control Act, the agency classified them and stated that they were protected by Exemption 1. Judge Kennedy ruled, however, that the official who made the classification determinations--the Information and Privacy Coordinator -- did not qualify under § 1.8(d) of Executive Order 12,958, which provides that an agency may classify information for which it has already received a request under the FOIA only "with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under section 5.6 of this order." The agency has moved for reconsideration.